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Custody, Arrest and Police Bail

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Custody, Arrest and Police Bail T A S M A N I A LAW REFORM I N S T I T U T E Custody, Arrest and Police Bail FINAL REPORT NO 1 MARCH 2003 Contents Information on the Tasmania Law Reform Institute 2 Background to this report 3 List of recommendations 4 Part 1: Custody and Arrest 5 Part 2: Reasons for Arrest 15 Part 3: Police Bail 20 Appendix 21 1 Information on the Tasmania Law Reform Institute The Tasmania Law Reform Institute was established on 23 July 2001 by agreement between the Government of the State of Tasmania, the University of Tasmania and The Law Society of Tasmania. The creation of the Institute was part of a Partnership Agreement between the University and the State Government signed in 2000. The Institute is based at the Sandy Bay campus of the University of Tasmania within the Law Faculty. The Institute undertakes law reform work and research on topics proposed by the Government, the community, the University and the Institute itself. The Institute’s Director is Professor Kate Warner of the University of Tasmania. The members of the Board of the Institute are Professor Kate Warner (Chair), Professor Don Chalmers (Dean of the Faculty of Law at the University of Tasmania), The Honourable Justice AM Blow OAM (appointed by the Honourable Chief Justice of Tasmania), Paul Turner (appointed by the Attorney-General), Philip Jackson (appointed by the Law Society), Terese Henning (appointed by the Council of the University) and Mr Mathew Wilkins (nominated by the Tasmanian Bar Association). address: Tasmania Law Reform Institute University of Tasmania Faculty of Law Private Bag 89 Hobart, TAS 7001 email: [email protected] telephone: (03) 62262069 fax: (03) 62267623 2 Background to this report The publication of this final report is made following consultation with the public and participants in the Criminal Justice System. The consultation was performed by the release of an issues paper on this topic in March 2002. The issues paper discussed: Part 1: the definition of being in custody under the Criminal Law (Detention and Interrogation) Act 1995; Part 2: the effect of failing to give reasons for arrest under s 301 of the Criminal Code, 1924; and Part 3: the granting of police bail under the Criminal Law (Detention and Interrogation) Act 1995. The following people responded to the issues paper: 1. The Hon Mr Justice Crawford Supreme Court Judge 2. Director of Public Prosecutions Mr Tim Ellis, SC 3. Mr Craig Mackie Legal Aid Commission 4. Mr Peter Maloney Director of the Office of Legislation Development and Review, Department of Justice and Industrial Relations 5. Tasmania Police Mr Mark Miller Senior Legal Officer, Legal Services 6. The Hon Mr Justice Underwood Supreme Court Judge In the writing of this final report we have given detailed consideration to all responses and included many of the suggestions made in our final recommendations. We again thank these people for taking the time and effort to respond. This report is also available on the Institute’s web page at: www.law.utas.edu.au/reform or can be sent to you by mail, fax or email. A note on Bail: This paper deals with a very limited aspect of bail – the ability for police to grant bail for indictable offences. The Institute is currently undertaking a separate law reform project looking at the issue of offending while on bail. It is intended that a research paper will be released on this topic within the first half of this year. Please contact the Institute if you would like to receive a copy of this research paper. 3 List of recommendations Recommendation 1: That the term ‘in custody’ in the Criminal Law (Detention and Interrogation) Act 1995 be extended to include suspects in the company or control of the police who are being or are to be questioned or are otherwise being investigated and: (a) who would be arrested if they attempted to leave; or (b) in respect of whom there is sufficient evidence to justify a lawful arrest. Recommendation 2: That a person being questioned as a suspect about their involvement in the commission of an indictable offence be afforded the following protections regardless of whether they are in custody or not: - being cautioned; - being informed of the right to communicate with a friend, relative or lawyer and have questioning delayed for such a person to be present during questioning; and - being provided with an interpreter when required. Recommendation 3: That s 301 of the Criminal Code be amended to make it clear that failure to give reasons for arrest makes that arrest unlawful. 4 Part 1 Custody and Arrest Recommendation 1: That the term ‘in custody’ in the Criminal Law (Detention and Interrogation) Act 1995 be extended to include suspects in the company or control of the police who are being or are to be questioned or are otherwise being investigated and: (a) who would be arrested if they attempted to leave; or (b) in respect of whom there is sufficient evidence to justify a lawful arrest. Introduction The Criminal Law (Detention and Interrogation) Act 1995 (Tas) was enacted to enable the police to detain lawfully arrested persons for a reasonable time following arrest to conduct investigations into the arrestee’s involvement in an offence. The Act represents a substantial modification of the common law which does not permit the police to detain suspects for questioning or other investigative purposes. The Act trades off suspects’ common law right not to be detained for questioning in exchange for enhanced protections whilst in police custody. These protections had hitherto received various levels of recognition and protection at common law. They include the right to silence and to be informed thereof, the right to communicate with a friend or relative and a lawyer and the right, where necessary, to an interpreter. However, the Act is deficient in that the scope and application of the protections it provides are uncertain and inadequate. This is because they are confined to a narrowly defined category of detainee – a person under lawful arrest by warrant or under s 27 Criminal Code or a provision of some other Act (s 3(2)). Suspects who are in police custody for questioning but who are not under arrest as so defined have none of the protections of the Act. The problem defined Protections provided by the Act The rights of citizens who have been arrested are safeguarded by a number of statutory and common law protections. In Tasmania, the majority of these protections are contained in the Criminal Law (Detention and Interrogation) Act 1995 (Tas). They include: - The requirement that the arrestee be taken before a magistrate or justice as soon as practicable after arrest unless released unconditionally or released on police bail: s 4(1); - The requirement that the arrestee be informed of the right to silence prior to questioning: s 4(5); - The requirement that the arrestee be informed of the right to communicate with a friend or relative and a legal practitioner prior to questioning: s 6(1); 5 Tasmania Law Reform Institute Custody, Arrest and Police Bail FINAL REPORT NO 1 - The requirement (subject to s 6(3) and (6)) that the police defer any questioning and investigation to enable the arrestee to make or attempt to make the communication: s 6(2); - The requirement (subject to s 6(3) and (6)) that the police afford the arrestee reasonable facilities to make the communication: s 6(7); - The provision of an interpreter when needed: s 5; - The requirement that the arrestee be questioned only for a reasonable time: s 4(2)(a); reasonableness in this context is determined by the considerations set out in s 4(4); - The requirement that the arrestee be taken before a custody officer without delay and placed in the custody of the custody officer: s 15(1); - The requirement that the custody officer perform the duties in relation to the arrestee imposed by s 15(2) and (4); and - The requirement that the custody officer ensure that the arrestee is treated in accordance with the Act: s 16 (1). These provisions recognise the relatively vulnerable position of those detained in police custody. Their vulnerability arises from the power imbalance that exists between detainees and the police. Findlay, Odgers and Yeo describe the situation in the following way: ‘[w]ith the full resources of the state behind them the police are usually in a position of enormous physical, psychological, emotional and legal superiority over the suspect’.1 To whom do the Act’s protections apply? ‘In custody’ under the Criminal Law (Detention and Interrogation) Act The Criminal Law (Detention and Interrogation) Act affords the protections contained in sections 4-6, 15 and 16 to people who are ‘in custody’. Section 3(2) provides that a person is ‘in custody’ for the purposes of the Act if he or she is: (a) under lawful arrest by warrant; or (b) under lawful arrest under section 27 of the Criminal Code or a provision of any other Act. Because the application of the Act depends upon whether a person is under lawful arrest, it is critically important to determine what exactly is meant by the term, ‘under lawful arrest’. The term ‘arrest’ is not defined in the Act. In practice, it can often be difficult to ascertain a suspect’s precise custodial status. The case law has distinguished three major custodial categories: (a) persons who are “voluntarily assisting the police with their enquiries”, (b) persons who are under arrest and, (c) in Tasmania, since the decision of the Tasmanian Court of Criminal Appeal in Sammak2 (followed in Reid and Swan3) persons who are in the custody of the police though not under arrest.
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